KS v Veitch (No 2) [2012] NSWCCA 266

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: KS v Veitch (No 2) [2012] NSWCCA 266 Hearing dates: 16 November 2012 Decision date: 10 December 2012 Before: Basten JA at [1]; Harrison J at [81]; Beech-Jones J at [82] Decision: (1) Allow the appeal. (2) Set aside the orders of Norrish DCJ dated 8 May 2012. (3) Set aside the subpoena dated 19 April 2012 addressed to the Health Information and Records Service, Cumberland Hospital. (4) Return the documents produced pursuant to the subpoena to the Cumberland Hospital. Catchwords: CRIMINAL LAW - procedure - sexual assault communications privilege - issue of subpoena and production of documents subject to leave - provision of reasons for granting or refusing leave - danger that reasons may disclose contents of compelled documents - Criminal Procedure Act 1986 (NSW), ss 295-306

CONSTITUTIONAL LAW - limits on legislative power of States - fair trial - sexual assault communications privilege - State law prohibits compelled production of counselling communications - issue of subpoena and production of documents subject to leave - whether law arbitrary or manifestly disproportionate response to traditional procedure - Criminal Procedure Act 1986 (NSW), ss 295-306

CONSTITUTIONAL LAW - limits on legislative power of States - essential characteristics of State court receiving federal jurisdiction - sexual assault communications privilege - State law prohibits compelled production of counselling communications - issue of subpoena and production of documents subject to leave - potential for unfair trial in State jurisdiction to taint court for the purpose of exercising federal jurisdiction - whether law can apply in federal jurisdiction - Criminal Procedure Act 1986 (NSW), ss 295-306